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2020 Supreme(Jhk) 930
IN THE HIGH COURT OF JHARKHAND AT RANCHI
H.C. MISHRA, RAJESH KUMAR, JJ.
Sanjay Kumar - Appellant
Versus
Srimati Suman Kumari - Respondent
F.A. No. 47 of 2019
Decided On : 08-09-2020
Advocate Appeared:
For the Respondent:Mr. Sujit Neepulam, Advocate
Headnote:
Hindu Marriage Act, 1955 - Section 13 and 13 (i-b) - Indian Penal Code, 1860 - Section 498A, 34 and 323 - Dowry Prohibition Act, 1961 – Section 3 and 4 - Marriage - Decree of Divorce - Dissolution of Marriage - Whether respondent-wife has treated appellant-husband with cruelty warranting dissolution of marriage - Whether residing separately by wife since 12.07.2014 amounts to desertion entitling husband for decree of divorce as per mandate of Section 13 (i-b) of Hindu Marriage Act, 1955 – Held, Allegation of cruelty as alleged by husband has not been proved by placing any cogent evidence on record and as such this ground has to fail and accordingly this point has been decided in favour of respondent-wife and against appellant-husband, which we hereby, affirm - It is admitted position between parties that they are living separately since 12.07.2014 - Argument of appellant-husband is that living separately itself is sufficient in eyes of law for granting divorce, which is not acceptable - It is evident that command of law is clear that desertion has to be voluntary - In present case, wife has been driven out of her matrimonial home and she is still willing to live in her matrimonial home as it is evident from fact that she has participated in marriage of younger brother of her husband at village of her husband and compromises by her in criminal cases in order to secure bail for appellant - Further entire sequence of fact suggests that husband is desirous to get rid of his wife and on so many occasions, he had to take her back only after compromise and on dictum of panchayati - Law is clear that if one of parties to matrimonial home, voluntary and without any plausible explanation has left matrimonial home giving no option to other party, then it amounts to desertion - Desertion is a willful and voluntary act by party to leave something without any rational reason - In present case, husband is at fault and this is reason for separate living of both parties - In view of finding recorded by Court, appellant-husband is not entitled for decree of divorce on ground of desertion for more than two years - In facts of present case and considering conduct of parties it is held that wife is entitled for cost of litigation which is quantified to Rs.20,000/- which must be paid within two months from date of decree - Appeal dismissed.
JUDGMENT :
RAJESH KUMAR, J.
1. Heard the appellant-in-person and learned counsel for the respondent wife.
2. The present appeal has been filed by the husband-appellant/ plaintiff against the Judgment dated 05.10.2018 and Decree of dismissal dated 28.11.2018 passed in Original Suit No.174 of 2016 by the learned Principal Judge, Family Court, Giridih.
3. The suit has been instituted by the husband for divorce under Section 13 of the Hindu Marriage Act, 1955 on the ground of cruelty, desertion and mental incapacity of the respondent-wife.
4. The Trial Court after considering the pleading of the parties has formulated six issues for decision, which are as follows:-
¼1½ D;k oknh dk okn iks"k.kh; gS \
¼2½ D;k bl okn esa okn&dkj.k gS \
¼3½ D;k izfrokfnuh us oknh ds lkFk Øwjrk fd;k gS \
¼4½ D;k izfrokfnuh us yxkrkj nks o"kksZ ls vf/kd le; ls oknh dk vfHkR;kx dj fn;k fn;k gS \
¼5½ D;k oknh fookg&foPNsn dk fMØh ikus dk gdnkj gS \
¼6½ D;k oknh fdlh vU; vuqrks"k ;k vuqrks"kksa dks ikus dk gdnkj gS \
5. After analyzing the evidences, pleadings and argument of the parties all the issues have been decided against the plaintiffhusband and in favour of the wife-respondent vide impugned Judgment dated 05.10.2018 and accordingly decree has been drawn and signed on 28.11.2018.
6. Being aggrieved, the present appeal has been filed by the appellant-husband and vide order dated 24.09.2019, delay in filing the appeal has been condoned. It may be stated that in course of trial as well as during the pendency of the appeal, efforts of mediation were made between the parties, but all the efforts failed. Even during the final hearing of the appeal, efforts of compromise were made by us, but there could be no compromise between the parties. Hence we have heard this appeal on merits.
7. Before this Court, the appellant-husband has taken two points i.e. cruelty and desertion. Mental disability of the respondent-wife has not been pressed. It is worth to note that the court below has rejected the ground of mental illness as no evidence had been led by the appellant-husband.
8. Considering the pleadings and arguments and material available on record, two points are required to be considered by this Court. .
(i). Whether the respondent-wife has treated the appellant-husband with cruelty warranting dissolution of marriage.
(ii). Whether residing separately by wife since 12.07.2014 amounts to desertion entitling husband for decree of divorce as per the mandate of Section 13 (i-b) of the Hindu Marriage Act, 1955.
9. As per the pleadings of the husband, marriage had been solemnized between the parties as per Hindu rites and rituals at Mirzaganj on 29.01.2007 in presence of relatives and family members of both the parties and they have lived as husband and wife at Ranchi and Delhi. One son and one daughter have been born out from their wedlock. As per appellant- husband, the respondent-wife always behaved in a psychic and rude manner with the appellant-husband and also with his parents and has treated him as well as his parents with utmost cruelty in different ways. The appellant-husband was considerate and treated his wife with compassion and tolerated her cruelty giving her time to mend her ways and even he allowed his brother-in-law, namely Dinesh Kumar to live in their matrimonial home at Ranchi in 2007-2008 to pursue his graduation course and on successful completion of course he got job in Insurance Company. Appellant-husband even encouraged his wife for higher studies and accordingly she got admitted in M.A. (History) in Ranchi University in June, 2007 but she did not pursue her course. Thereafter even she was admitted in Indira Gandhi National Open University (IGNOU) for M.A. (English), but in vein. In 2008, appellant-husband had searched a job in English Nursery School as per her educational qualification, but she refused to work. Just after one year of marriage, the appellant-husband had taken his wife to marriage ceremony of her cousin sister, namely, Poonam at Mirzaga
